ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013953

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00018303-001	29/03/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00018303-002	29/03/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00018303-003	29/03/2018

Date of Adjudication Hearing: 14/06/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 27 of the Organisation of Working Time Act, 1997 and Section 39 of the Redundancy Payments Act, 1967 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The dispute concerns a claim for Redundancy, Annual leave and Public Holidays by a Shop Worker against a Furniture Shop. The Redundancy claim focuses on a change in the Place of Work of the Complainant

1: Summary of Complainant’s Case:

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018303-001

Summary Complaint

Claim for non-payment of Annual leave at the end of employment.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018303-002

Claim for non-payment of Public Holidays on exit from employment.

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00018303-003

Claim for Redundancy.

1:1 Claim for Redundancy following closure of the Midlands Branch of the Respondents Furniture chain.

The Respondents closed the Midlands Branch in September 2017. The Complainant had, in her ten years of employment only worked there. The Respondent’s offer of work in a North Wexford Town was completely impractical as the round trips would amount to 160 Klm. per day, no suitable Public Transport was available and she did not drive.

It was accepted that a literal interpretation of the contract of employment did mention work flexibility with the other stores. However, the Principal /Owner of the Business had agreed with the Complainant at the time of her recruitment that “she would be based only in the X Midlands Store” and custom and practice for the last ten years had confirmed this as the actual reality of her employment contract.

On this basis she was claiming a Redundancy payment.

2: Summary of Respondent’s Case:

2:1 Holiday Pay complaint – CA 18303-001

The Responded produced Bank records to demonstrate that holiday pay had been paid to the date of departure of the Complainant.

2:2 Public Holiday pay Complaint. CA 18303-002

Records produced indicated that all Public holidays, save the 1st January 2018, had been paid.

The Respondent gave an undertaking to the Hearing to rectify this issue as soon as possible.

2:3 Redundancy pay Complaint CA 18303-003

The Respondent operates a number of Furniture Stores in East Leinster. The economic downturn resulted in the Company temporarily closing the Branch in the Midlands Town, Town B, where the Complainant was employed. She was invited to redeploy to Town A on similar hours and conditions as her position in Town B.

Her contract of Employment clearly states that

“You will normally be required to work at the employer’s premises in Town A, Town B and Town C but you may be required, from time to time, to work at the employer’s other place of business or the premises of such subsidiary companies or organisations as the employer may require. You will be given as much notice of any change of place of work as is reasonably practicable.”

The Complainant was unable to accept this position and resigned her employment by letter of the 15th February 2018. This was a direct resignation and no Redundancy liability arises.

3: Findings and Conclusions:

3:1 Holiday Pay complaint – CA 18303-001

I was happy that the records produced supported the Respondent position. This complaint is not well founded and is dismissed.

3:2 Public Holiday pay Complaint. - CA 18303-002

I was happy that the records produced supported the Respondent position save for the 1st January 2018. Accordingly, this complaint is well founded as regards that day alone and I direct that a day’s pay in recognition of the 1st January 2018 Bank Holiday be paid to the Complainant.

2:3 Redundancy pay Complaint - CA 18303-003.

This complaint is governed by Section 7 (1) of the Redundancy Payments Act,1967 quoted below.

General right to redundancy payment.

7.— (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

( a) he has been employed for the requisite period, and

( b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of F18 [ four years ] ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if F19 [ for one or more reasons not related to the employee concerned ] the dismissal is attributable wholly or mainly to—

( a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

F20 [ ( b ) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish

The key question in this case was the interpretation of the “Place of Work” and specifically how it related to the general Contract of Employment “flexibility clause”.

Legal precedents are interesting and the issue is discussed at p123/124 in Employment Law 2nd Edition by Dorothy Donovan, Round Hall Press, 2016.

Her the author quotesfrom the English case of Bass Leisure v Tomas [1994] IRLR 104 where it was stated that the issue of the place of employment should be established

“By a factual inquiry, taking into account the employee’s fixed or changing place or places of work and any contractual terms which go to evidence or define the place of employment”

In the quoted case the fact that the contract provided that the Company reserved the right to transfer any employee to a suitable alternative place of work did not result in the claimant losing her right to a redundancy payment when she resigned after being relocated to depot some 20 miles away. Interestingly this case was approved by the English Court of Appeal is subsequent cases.

In Irish cases such as Broderick v Dorothea Fashions Ltd (RP11/1978) the Employment Appeals Tribunal held that “East Arran Street was not the same as Churchtown” and in Earley v Floorstyle Contracts (RP382/2003) it was held that “Skerries is not the same place as Swords.”. Redundancy was awarded in these cases.

It is clear that a flexibility or geographical relocation clause in an employment contract has its limits and must be seen in the context of the facts of an actual case.

In the case in hand here Town A is a round trip of some 120 kilometres (AA and Via Michelin) from Town B -considerably more that the distance between Skerries and Swords referred to by the EAT above.

The description of the closure as “Temporary” seemed a little hard to sustain as the premises was still closed at the date of the hearing.

For ten years the Complainant was employed solely in Town B. Custom and Practice clearly indicates this as the place of work. The somewhat disputed verbal assurance of the Owner Principal in 2014 had to be given some credence even if he did not give direct verbal evidence and the assurance was disputed by the Respondent Manager present.

2:4 Redundancy claim conclusion.

In conclusion and taking Section 7(2) (a) of the Redundancy Act into account I had to find that the relevant section had to apply to the Complainant in this case namely, a redundancy arising from a change - “to carry on that business in the place where the employee was so employed”.

Accordingly, I find that the Complainant is due a Redundancy Payment to be calculated in keeping with the Rules and Regulations currently in force from the Department of Social Protection.

4: Decision:

Section 41 of the Workplace Relations Act 2015, Section 27 of the Organisation of Working Time Act, 1997 and Section 39 of the Redundancy Payments Act, 1967 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Act	Complaint/Dispute Reference No.	Summary decision / Refer to Section 3 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00018303-001 Holiday Pay	Claim is not well founded and is dismissed
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00018303-002 Public Holidays	Claim, based on one day, the 1st January 2018, is well founded. A day’s pay to be paid to the Complainant in lieu of this Public Holiday.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00018303-003 Redundancy claim	Claim for Redundancy Payment is well founded. A Redundancy payment, calculated in keeping with the Regulations of the Department of Social Protection to be paid to the Complainant by the Respondent. The payment be made within two months of the date of this Decision.

Dated: 15/08/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee